Citation Nr: 9828822
Decision Date: 09/28/98 Archive Date: 10/01/98
DOCKET NO. 95-25 821 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
Entitlement to increased ratings for cervical and lumbosacral
strain, currently rated in combination as 10 percent
disabling.
REPRESENTATION
Appellant represented by: G. Henry Temple, Jr.,
Attorney-at-Law
ATTORNEY FOR THE BOARD
M. Miyake, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1972
to October 1976.
This appeal is before the Board of Veterans’ Appeals (Board)
from a March 1994 rating decision of the Winston-Salem, North
Carolina Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied the benefits sought.
In September 1994, the veteran filed his notice of
disagreement (NOD) indicating he was dissatisfied with the
March 1994 rating decision but did not mention specific
disabilities. The May 1995 statement of the case (SOC)
addressed only the issues of increased ratings for cervical
and lumbosacral strain and informed the veteran that the
March 1994 rating decision did not consider any other claims
for increased or compensable ratings. The veteran submitted
a substantive appeal, which the RO accepted as timely, with
respect to the issues of increased ratings for cervical and
lumbosacral strain disorders. These are the only issues
properly before the Board.
In his substantive appeal, the veteran also raised the issues
of increased ratings for tinea pedis, dermatitis of the
elbows, a compensable rating for anal condylomata,
entitlement to individual unemployability, and whether new
and material evidence has been submitted to reopen a claim of
service connection for degenerative changes of the cervical
spine and degenerative disc disease including herniated
nucleus pulposus of the lumbar spine. The RO addressed these
issues in a rating in May 1998. There cannot be a NOD on an
issue prior to a decision on such issue; and a substantive
appeal must be filed after a statement of the case has been
furnished. 38 C.F.R. § 20.200. Because this sequence did
not occur in this case, the further issues raised are not
properly before the Board. They are referred to the RO for
any appropriate action, such as consideration of timeliness
of appeal.
The issue of whether new and material evidence has been
submitted to reopen a claim of service connection for
degenerative changes of the cervical spine and degenerative
disc disease including herniated nucleus pulposus of the
lumbar spine is inextricably intertwined with the claim for
increased ratings for cervical and lumbosacral strain and
must be addressed concurrently.
In November 1997, the RO denied service connection for
diabetes mellitus as secondary to residuals of frostbite.
The veteran filed a NOD and the RO issued a SOC in May 1998.
The veteran has not filed a substantive appeal on this issue;
therefore, it is not before the Board.
REMAND
The veteran contends that his cervical and lumbosacral strain
disorders are more severe than the current 10 percent rating
indicates. His claims are well grounded and the VA has a
duty to assist him in developing the facts pertinent to his
claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§
3.103, 3.159 (1998).
Service connection was granted for cervical and lumbosacral
strain in March 1977. Since then, these two disorders have
been rated as a single entity. The Board notes that cervical
strain and lumbosacral strain involves two different
anatomical areas and should be rated as separate entities.
Based on the medical evidence, the extent to which the
veteran is impaired by the service connected cervical and
lumbosacral strain is unclear. The most recent VA
examination in January 1997 shows that he has cervical
degenerative disease, lumbar degenerative disease, and
intervertebral disc syndrome. It is unclear to what extent
impairment noted is due to disabilities for which service
connection has been denied. It is noteworthy that service
connection has been denied for cervical myalgia (which by
definition is muscle pain). The basis for disassociating
cervical muscle pain from cervical strain is not evident from
the record.
The United States Court of Veterans Appeals (the Court) has
expounded on the evidence required for a full evaluation of
orthopedic disabilities. In DeLuca v. Brown, 8 Vet. App. 202
(1995), the Court noted that orthopedic examinations must
include consideration of all the factors set forth in
38 C.F.R. §§ 4.40 and 4.45. Those regulations, in part,
require consideration of weakened movement, excess
fatigability, and incoordination, as well as pain and
limitation of motion due to pain.
In view of the foregoing, the case is REMANDED to the RO for
the following:
1. The RO should obtain complete clinical
records of any treatment the veteran
has received for his neck and back
that are not already of record. The
veteran should assist in this matter
by identifying all sources of
treatment.
2. The RO should then schedule the
veteran for a VA orthopedic
examination to determine the nature
and the extent of disability
associated with his service-connected
cervical and lumbosacral strain. The
examiner should provide a detailed
opinion as to the relationship, if
any, between cervical and lumbosacral
strain and cervical myalgia and
degenerative disc and joint disease of
the cervical and lumbosacral spine.
The examination should include
complete range of motion studies (with
normal ranges reported), and any
further restriction due to pain should
be reported, if possible in terms of
additional loss of motion. The
examiner(s) should determine whether
the cervical and lumbosacral spine
exhibit weakened movement, excess
fatigability, or incoordination. In
addition, the examiner(s) should
express an opinion as to whether pain
significantly limits functional
ability during flare-ups or when the
cervical and lumbosacral spine are
used over a period of time. If
feasible, these determinations should
be expressed in terms of the degree of
additional loss of range of motion due
to weakened movement, excess
fatigability, incoordination, or pain
after prolonged use or during flare-
ups. If a symptom, such as muscle
pain is attributed to, or
disassociated from any diagnosed
disability entity, the rationale for
this must be explained. The claims
folder, along with all additional
evidence obtained pursuant to the
requests above, must be available to
the examiner for review in conjunction
with the examination. To the extent
possible, lumbosacral symptoms (and
associated impairment) should be
distinguished from symptoms of the
cervical spine. Prior to the
scheduling of the examination the RO
should apprise the veteran of the
consequences of a failure to report
for the VA examinations, pursuant to
38 C.F.R. § 3.655. All communications
with the veteran must be documented.
3. The RO should then review the claims.
If any claim remains denied, the RO
should provide the veteran and his
attorney an appropriate supplemental
statement of the case and give them
the opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran need take no
action until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
George R. Senyk
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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